In celebration of World Religion Day on the 17 January 2021, Opeyemi Ogundeji, researcher and employment law writer at Croner-i explores issues such as religious discrimination and unconscious bias that could occur in the workplace and how to prevent them.
World Religion Day celebrates all religions and falls on every third Sunday of January. It seeks to promote the learning of every religion for the sake of peace and understanding but perhaps more awareness needs to be concentrated within the workplace in order to reduce religious biases and discrimination from occurring, whether directly or indirectly.
What is direct and indirect religious discrimination?
The Equality Act 2010 provides protection against unlawful direct and indirect discrimination (as well as harassment and victimisation) for the protected characteristic of religion or belief.
Direct religious or belief discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ their religion or belief. This unfavourable treatment of a person of one or more religions would usually be compared with others in like-for-like circumstances which can never be justified, no matter how well-intentioned the motive.
For example, although a Muslim applicant is the best candidate for a job, they are not offered the position purely because he is a Muslim as the employer fears they would constantly be subjected to detriment from some existing employees who have expressed negative views about the Islamic faith. This would constitute direct discrimination if the applicant can show that a non-Muslim applicant, actual or hypothetical, and who had, or would have had, the same attributes as them, was treated more favourably in an identical recruitment process.
Protection of religious discrimination as covered in the 2010 Act includes the five circumstances below:
the actual religion or belief of the complainant
the perception of an individual’s religion or belief, whether that perception is correct or not (for example, an employee is perceived to be a Catholic, but is in fact a Protestant)
by association with someone who is protected under the 2010 Act (for example, an employee’s colleagues tease them about their partner, who is a Hindu)
because of personal conviction (for example, an employee is dismissed because they will not carry out an employer’s instruction that they must refuse to interview Muslim applicants)
because the complainant is treated as if they have a protected characteristic, even though it is known that they do not (for example, a person who is known not to be Jewish, but who lives in a large Jewish community).
Indirect religious or belief discrimination occurs when a provision, criterion, or practice (PCP) is applied universally and that PCP:
• puts, or would put, a group of people of one religion or belief at a particular disadvantage compared to others of a different religion or belief in circumstances where there is no material difference in each case
puts, or would put, an individual employee at a disadvantage
cannot be shown to be a proportionate means of achieving a legitimate aim.
To demonstrate that a PCP is a proportionate means of achieving a legitimate aim, the aim itself must be legitimate, and must correspond to a real, objective business need which, if not met, would mean the business would suffer a disadvantage.
To be proportionate, the PCP must:
actually contribute to the pursuit of the legitimate aim
be within the limits of what is absolutely necessary to achieve the business aim and there is no other less discriminatory way to achieve it
deliver benefits to the business which far outweigh the discriminatory effect on the individual.
Do all “discriminatory acts” amount to religious discrimination?
Not necessarily. There are specific situations where an employer is allowed to make decisions that otherwise may seem to be directly or indirectly discriminatory.
Under the “general occupational requirements” provisions in the 2010 Act, an exception to the discrimination rules applies where an employer can show that due to the nature or context of the work, being of a particular religion is a requirement for the person performing it.
The requirement must be a proportionate means of achieving a legitimate aim, in a situation where the person to whom the occupational requirement applies does not meet it, or the employer has reasonable grounds for not being satisfied that the person meets it. To satisfy the exception, the requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext.
Employers are liable for acts of discrimination (including harassment and victimisation) carried out by their employees “in the course of employment”, whether or not the employer knows about or approves of those acts. However, employers can defend a claim by showing that they took all reasonable steps to prevent their employees from acting unlawfully.
Employees are also personally liable for their own unlawful acts where the employer is liable because they were committed during the course of employment. Employers and employees could also be liable for unlawful acts at events involving employees which are held outside work time, but where the nature of the event can be linked to work in some way (in other words, an event which could be described as an extension of employment; for example, a company Christmas function, a “leaving do”, a meeting on a work-related issue held at the local pub during an unpaid lunch break, or immediately after work in a bar).
To convince an employment tribunal that all reasonable steps have been taken to prevent discrimination from occurring, employers should be able to demonstrate that they have followed all the best practice recommendations in the Equality and Human Rights Commission Employment Statutory Code of Practice and the Acas guide Religion or Belief and the Workplace.
Unconscious bias is when someone forms a quick opinion about a situation or individual without necessarily being aware of it. For example, a person may instantly make a judgment about someone due to their appearance, which can therefore impact upon their opinion of this individual overall.
Unconscious bias can occur in all areas of life, but in a workplace context, it can affect who is recruited, who is promoted, and who receives certain opportunities at work. While most companies will have procedures in place to prevent employees not having equal opportunities due to their characteristics, they may not take into account a subconscious bias of this nature.
Biases can arise due to a number of characteristics, some of which may not be related to discrimination. However, in situations where this bias can be attributed to someone’s protected characteristic, such as their race, age, gender or sexual orientation, employers may face costly discrimination claims. Sometimes unconscious bias in the workplace can arise due to a mixture of things.
For example, a person who is Muslim may belong to another protected characteristic (race) because they are of Afro-Caribbean descent or they are Asian, meaning the religious aspect of their characteristic is not the standing point but there is an unconscious religious bias, as well as a racial bias.
To tackle this issue, employers may choose to:
implement blind recruitment
omit personal interview questions
use multiple interviewers
grade staff fairly based on merit.
Discrimination can be difficult to weed out of an organisation, especially when it goes unnoticed or the victims do not speak out. Employers avoid costly discrimination claims by raising awareness of and creating policies that tackle discrimination and the unconscious biases that come with it — those which may cause people of a particular religion, or other characteristics, to be denied opportunities for progression and inclusion.